Calibers National Shooters Sports Center, LC lost its claim to grab the domain name calibers.com, however the panel refused to find Reverse Domain Name Hijacking (RDNH) despite the fact that they found the domain holder had legitimate interests in the disputed domain name and did not register and use the disputed domain name in bad faith\

The Panel hold that Complainant has not established a prima facie case in support of its arguments that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii).

Respondent notes that it operates a web directory at Calibers.com and has for 13 years without opposition.

The Panel agrees with Respondent, the Panel find that Respondent can establish rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).

The Panel find that Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii).

The Panel concludes that Respondent has rights or legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii), the Panel also find that Respondent did not register or use the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).

Respondent notes that it operates a web directory at calibers.comand has for 13 years without opposition.

According to Respondent, its use of the disputed domain name is one which reflects its business and the domain name itself.

The Panel further find that the Respondent has not registered or used Calibers.com in bad faith

It finds that Respondent has not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii).

Respondent notes that it operates a web directory at calibers.com and has done so for 13 years.

According to Respondent, Complainant’s assertion that Respondent is attempting to trade off of Complainant’s reputation is unfounded as Respondent is merely using a descriptive term, “calibers,” which is so closely associated with the industry in which Complainant happens to operate that it lacks any distinctiveness.

The Panel notes that mere assertions of bad faith are not enough by themselves for a finding of bad faith, and that the use of domain names for web directories and the like does not have an impact on this.

Complainant has not submitted any evidence that its service mark and its related services are widely known in particular in China, where Respondent markets its directory services. Complainant has further not submitted any other proof showing that Respondent should or could have been aware of Complainant’s trademark for other reasons, i.e., that it had been specifically aware of Complainant’s mark.

The Panel notes that only actual, not merely constructive, knowledge of a complainant’s rights in a mark at the time a disputed domain name is registered has been found by modern panels to be a basis for soiling a respondent’s dry-clean-only professional character with the oil-based stain of bad faith. <

As such, the Panel refuses to find bad faith under Policy ¶ 4(a)(iii) on the grounds that Respondent did not have actual knowledge of Complainant’s mark when Respondent registered the calibers.com domain name.

As such, the Panel finds that Respondent did not register the calibers.com in bad faith pursuant to Policy ¶ 4(a)(iii)

Respondent contends that the calibers.com is comprised entirely of a common term that has many meanings apart from use in Complainant’s CALIBERS mark.

Respondent argues that the term “calibers” can refer to the diameter of the bore of a firearm, such as a gun barrel, and the use of the term in a gun store is analogous to using the term “wheels” to operate a car dealership. Respondent asserts that Complainant’s mark would in no way give it the exclusive right to use the terms or to assert a monopoly over such descriptive terms. Moreover, Respondent contends that the registration and use of domain name comprising such a common term is not necessarily done in bad faith.

The Panel considers that a respondent is free to register a domain name consisting of common terms and that the domain name currently in dispute contains such a common term.

Especially given the Panel’s finding that the Complainant’s mark is not considered as having acquired a secondary meaning before the registration date of the disputed domain name as reasoned above, the Panel also finds that Respondent did not register or use the calibers.com domain name in bad faith under Policy ¶ 4(a)(iii). 

As the Panel finds that Complainant has satisfied Policy ¶ 4(a)(i), the Panel finds that Complainant has not engaged in reverse domain name hijacking.

Even though the Panel finds that Complainant has failed to satisfy its burden under the Policy, this does not necessarily render a finding of reverse domain name hijacking on behalf of Complainant in bringing the instant claim.